 Good afternoon and welcome to another episode of Likeable Science here on Think Tech Hawaii. I'm your host, Ethan Allen. Thanks for joining us. We're usually a likeable science. We talk about sort of fun, interesting kinds of topics. We're going to take a little bit of a sidestep today, but it's a topic that has a lot to do with science, actually, and with really everyone's daily lives. So, we're going to be exploring the topic of sexual harassment, and here to help me today is McConaughey. Welcome, McCona. Thank you, Ethan. McCona is an attorney, author, speaker, coach, all kinds of good things she does. Has written a number of books, including a book on sexual harassment, right? Represented people on both sides, guilty and not guilty, men and women, been a victim of sexual harassment. Been had inadvertently sexually harassed someone. Given trainings to companies in, what, 38 states or something on sexual harassment. So, a lot of great experience in the field, and so let's just jump into it. But before we start, I want to do one of my little campfire stories here. These are stories typically from the world of nature that have seemingly marginal relations to the topic at hand, but this one is funny, I think you'll see. So years ago, I used to work in a laboratory that studied reptile reproductive biology. And we in particular were working with some of the strange games that reptiles play with their reproductive systems, which are many and varied, but this particular one was temperature dependent sex determination, or PSD as scientists call it. So unlike people and mammals, some reptiles, whether they're male or female, is determined by what temperature they are incubated at in the egg, you know, during some part of the incubation if they're, in the case of leopard geckos we studied, if they're incubated warm, they turn out male, if they're incubated cool, they turn out female. Now of course, being curious scientists, my lab boss basically said, what happens when you put it right on that sort of borderline temperature, right, where you're not really going to get the males, you're not really going to get the females, what's going to happen to those animals? And those animals that were incubated, just that narrow midline temperature were very interesting. They appeared physically to be females, but their brains had been masculinized. They thought of themselves as male basically. And this as you, right away, a male brain and a female body, you know there's going to be trouble, right? Because they would then, for instance, approach females to breed, and of course the females took this as some other female being hyper-aggressive to them and didn't respond very well at all. Conversely, males would approach them to breed and of course they would respond very aggressively back to them. So these were very unsuccessful animals, reproductively. But you can see in a sense they were both being harassed and harassing, you know, so in that sense it does tie into today's topic. But moving out of the world to be analyzed into the world of people, let's just start with some basic definition here. I mean sexual harassment sort of has some clear meanings, right? It does and it doesn't. So there's actually three meanings and I like to show an upside down triangle to show that there are actually three definitions. There's the legal definition, a company policy definition, and a values definition. So from a legal perspective, first of all, it's important for everyone to remember that harassment law only applies in the employment context. So for example, Harvey Weinstein did not employ most of the women who he assaulted. So they couldn't sue for sexual harassment, but they could sue for assault, personal injury, and they could file criminal cases if the statute of limitations hadn't run. But harassment law only applies to the employment context. It could be a employer to employee, two co-employees, or it could be an outsider coming in and harassing an employee. So given that context, there are four factors in order to be illegal. The first is it has to be either sexual or gender-based. So gender-based could be things, for example, we've seen women scientists say that they've been told by other scientists, women don't make good scientists, or you're not going to get that grant because you're a woman. So that would be sexist or gender harassment. And then sexual harassment is related to sexual relations or sexual activity. The second factor is that it must be unwelcome by the victim. So most behavior is presumed welcome. So there are some behavior, the court's presumed is unwelcome. What would you think would be the kinds of behavior that a court would assume women don't welcome or men don't welcome? Being groped. Being groped. Excellent. Yeah. So kind of the big three areas, here, here, and here, those are presumed unwelcome. But most other things, like I asked this question recently in a training, and someone said, oh, well, sexual innuendos, those are not presumed unwelcome. Swearing is not presumed unwelcome. Even calling people names is not presumed unwelcome. So what that means is that someone has to say, I don't appreciate that, either to the person or to their human resources department. Then the third factor is it must be so severe it interferes with the person's ability to do their job. So for example, on my website, we have a feature called Ask the Lawyers and People Sending Questions. And I just got one from someone who asked, is it illegal if my boss on one occasion in front of someone else calls me an FNB? And the answer is no, it's not illegal. So the law prohibits a very narrow range of behavior. If they did that repeatedly, that would be more of an argument. But a court would really want to see even more things happen. What's the real impact? What's the impact on their job? Right. And then the fourth factor is the company where the employer knew or should have known and did nothing. So if a supervisor, manager, owner harasses, that fourth factor is met. So that's a legal definition, but again, it's a very narrow definition. So that's why we talk about companies setting a higher standard. Why do you think a company should set a higher standard? Well, yeah, if it's so hard to prove and it allows a great deal of unwanted, crude, unnecessary counterproductive behavior then to occur, but still not meeting the definition of illegal. So that's not in the company's best interest. They're going to have unhappy staff. They're going to have people who don't feel safe in their workplace. Exactly, exactly. So you want to set a higher standard culturally and then also you want to fail safe because you don't want to wait till someone does something illegal before you terminate them. You want to, usually people, harassers, bullies, test. And they test lots of people and they test in lots of ways. So they start off usually very simple and then they go further and further. So we want to have a fail safe. And then at the top are our values, but actually values go all the way. So Harvey Weinstein have values. They just happen to be beneath the law, right? Okay. But some people, their values are way above the law. So a company doesn't necessarily have to honor those values. They may choose to. But they don't necessarily have to. So for example, I had a client who an employee after a couple days of work said she was being harassed because the men got too close to her. And when they asked, well, what do you mean by too close? She said she wanted the men to stay at least 10 feet away. Whoa, okay. Yeah. So maybe in some environments or some jobs they could have accommodated that. But they said, this job, we can't do that. So you have a choice. You can either stay or leave. And she ended up leaving. But she can't claim harassment just because it violates her values. So that's why I think it's so confusing. Because people say, I've been sexually harassed. And it includes everything from a date gone wrong to assault. And not all of those things are sexually harassed. And there is very, because it does involve personal values. There's very different personal values about, some people do have very different personal distances that they're comfortable with. Exactly. People from different cultures may be more or less comfortable touching people differently. Yes. Who can forget that great picture of George W. Bush and the king of Saudi Arabia walking hand in hand. I mean, that was really sort of odd. Like, huh? Exactly. Yeah. For the Saudis, that's a perfectly normal thing. Perfectly normal. Exactly. Yeah, in fact, when I talk about harassment, I spend a lot of time talking about values. And I'll ask people to say what their values are. And people always say respect. Well, different cultures define respect differently. And men and women can define respect differently. So for example, in the Middle East and India, it's very disrespectful to look someone in the eyes. But the way I was raised, my mom would say, look me in the eyes when I'm talking to you. So that's very respectful. So if you get one person from one and one from the other, they can feel very, I mean, yes, exactly. Yeah. And I mean, some of it gets to be pretty clear. You read some of these cases in the world of science. And sexual harassment has been making the news in science these days. In 2017, Science Magazine listed sexual harassment as one of its breakdowns of the year, one of its three major bad things that happened in science. Sexual harassment is here and there. It's in the Honolulu paper here, just after Christmas. But in the world of science, it's been rocked by some very bad cases, particularly this past year, of people particularly out at field sites, particularly with senior male researchers and their younger graduate or postdoctoral female associates. One in the article, particularly with this person, apparently this guy, multiple times, shoved this woman, pushed her down off sizable cliffs, harassed her verbally, blew volcanic dust into her eyes, which was potentially blinding, made all kinds of sexual innuendos, apparently including that she sleep with the other guy in the team. He is out of his position by the by. Good. He conflicted with somebody's values and some employer's standards, for sure. Well, I mean, that's clearly illegal. Once you start shoving people off cliffs, you've got to lie in there. But it happens everywhere. Probably, and please correct me if I'm wrong here, I think it would tend to happen more in workplaces that are more dominated by one sex than the other. The minority sex probably gets experiences more harassment. Right, it's definitely male-dominated professions where women tend to get harassed. And female-dominated professions, where men get harassed by women. And I did represent a man who was sexually harassed by his, he worked for a women's organization. And they put him down for being a male. They said that he wasn't a good person, because he was a man, he wasn't a good person. And all kinds of, I can't even say on television what they did to him. But there's kind of a group mentality or... It seems so needless too, right? I mean, it's funny, I was thinking back in this, and when I worked in this reproductive biology, I've actually, most of the people in this, these two associated labs, most of them were women. And I used to regularly find myself out on a Friday evening, drinking a few beers, and realize that I'm sitting there in a group of 10 or a dozen women. I'm the only guy. And they'd get to a little bit of male bashing and all. And then it periodically turned to me and said, you know, no offense, right? And none was taken. But it was all fine. But yeah, I can get, or herd mentality can be very corrosive actually. Yes, exactly, exactly. So the other thing that we touched on this is culture, right? I mean, different cultures view male-female relationships very differently. And what is appropriate behavior in one culture may be very inappropriate in another culture, right? Yeah, I've been talking with some friends about France because Brigitte Bardot and Catherine Deneuve have come out and talking about sexual harassment and the claims against Weinstein. And they've kind of taken a different perspective on it, especially Brigitte Bardot has said, well, women always use their feminine wiles to get parts and that's the way it's always been and what's the big deal. I'm not sure that we would necessarily agree with that but it reminded me of some research that was done some years ago where they asked both women in France and women in the United States a case study. They said, your boss tells you he has us a weekend home in the country and he'd like to invite you there for the weekend to discuss a promotion. Is this harassment? And basically, 98% of the American women said yes and 98% of the French women said no. Intriguing. Let's follow up on that when we come back but right now I'm told we have to take a quick break. You're here on likable science, McConaugher research allies with me. We're talking about sexual harassment. I'm your host, Ethan Allen and we'll be back in one minute. Hey, hello, I'm Stan Energyman here on Think Tech Hawaii where community matters. This is the place to come to think about all things energy. We talk about energy for the grid, energy for vehicles, energy and transportation, energy and maritime, energy and aviation. We have all kinds of things on our show but we always focus on hydrogen here in Hawaii because it's my favorite thing. That's what I like to do. But we talk about things that make a difference here in Hawaii, things that should be a big changer for Hawaii and we hope that you'll join us every Friday at noon on Stan Energyman and take a look with us at new technologies and new thoughts on how we can get clean and green in Hawaii. Aloha. Aloha. My name is Mark Shklav. I am the host of Think Tech Hawaii's Law Across the Sea. Law Across the Sea comes on every other Monday at 11 a.m. Please join us. I like to bring in guests that talk about all types of things that come across the sea to Hawaii. Not just law, love, people, ideas, history. Please join us for Law Across the Sea, Allah. And you're back here on Likeable Science. I'm your host, Ethan Allen. With me today in the Think Tech studios is McCona is a tri. McCona is an attorney who has dealt with sexual harassment issues and studied them, spoken on them, trained companies around the country on this. And we were just talking about sort of cultural differences, different groups who perceive male-female roles differently on what's okay and what isn't okay very differently. But fundamentally this really does get down to sort of the psychology of it, right? What's going on? I mean, in some sense sexual harassment is not really about sex necessarily, right? Right, yes, it often is about control or power. So when psychologists have studied harassers, there are a number of categories. There's narcissists who basically are all out for themselves. There are psychopaths. Psychopaths have jobs too. Bullies who may not necessarily fall into either of those categories. But the bully men and women equally sometimes. And some of those three, as well as others, may have been abused or bullied as children. So they're using that experience to bring into the world and that's how they've learned to relate to people. So I like to think of us being on a bell-shaped curve. And the saints on one end who are never going to do anything. And then on the other hand are the flawed people that we've just been talking about. But most people are in the middle. Their hearts are in the right place. Brains maybe not so much. So that's why we need harassment prevention training to get their brain in the right place. But I don't think there's a whole lot that we can do about the bullies and the psychopaths or the narcissists except empower victims to speak up, make sure companies respond appropriately, and empower allies or bystanders. If somebody sees something, not to just stand there or walk away, but instead to do something. Yeah, because it's very important that we establish these norms and what is OK and what isn't OK. If you experience something that's not OK why you've got to say it. And you put this on a very nice little article. It's up on our web page. And just sort of talk about this. One of the best things is immediately to come right back to the person and say, hey, I'm uncomfortable with that. That was, I found that an offensive remark or whatever. Just let him know right off the bat. Like, hey, there's no mistaking this. I'm not going to let that sliding him back at you three months later and tell you I didn't like it when you did that. You go right away. Yeah, I have had the experience of someone coming back later where I had hired a young man to work for me. And after a couple of months, it was right at Christmas time. And we went out for lunch. And at the end of lunch, I said, you don't have to come back to work today. He was on his way on vacation. Merry Christmas. And I gave him a hug. He came back a week later and said, I felt sexually harassed. So I immediately, of course, am thinking, is this harassment? Is this severe? I decided, no, it's not harassment. But what I said is, I am sorry. I am so sorry. It wasn't my intention. And it'll never happen again. And then I walked around at eggshells for six months. But then after six months, he said, you know what? I realized that I misinterpreted what you did. And it wasn't. So he apologized to me. Well, that's good. But often what happens when people try to say to someone that's offensive is they get an argument. You're being too sensitive. You're being emotional. I do this with everybody. And in that situation, you then have to realize, OK, this isn't working. And then talk to human resources or their supervisor, your manager, to resolve the situation. Right, because people will try to invalidate your feelings as, again, the sort of classic bullying technique, right? Exactly. And you can't let that happen. Or at least then you become a doormat, right? Right. And then the other hard part of it is when the person is in a position of power and you feel powerless. So to speak up to your manager, and most harassment happens among lower paid women and women of color. So housekeepers, for example, are often victims of harassment and other people in that service workers are in those positions. And for them to say, I find that offensive, could mean the difference between them going to their home that night or being homeless. So in that situation, they have to go to human resources and they may not be able to speak up. Yeah, it's a very, very awful choice to face that. Whereas in the classic casting couch scene in Hollywood, there's almost more of a, at least from the harassers viewpoint of a quid pro quo kind of thing, right? I'm asking you to do this in return. I will give you this. Right, and of course, quid pro quo harassment is illegal too. But it is and it isn't. I mean, what we see with Harvey Weinstein and Louis K. the comedian was that a lot of women who were just starting out were going to see him. And I actually found a video clip of Courtney Love being asked, what advice do you have for young women getting into acting? And she said, if Harvey Weinstein invites you to a hotel, don't go. Really? OK. So he was, and this was in 2005 when she said this. So it's amazing how long some of this takes. And again, a lot of these cases in the world of science are things that happened years ago. This one woman, what I was telling you about, waited until she had gotten her degree, had gone through postdocs, had gone through her assistant professorship, and finally got tenure. And right after she got tenure, then she turned right back around. Now she was safe, basically. She was protected from anything he could try to do against her, basically. And she had not felt safe before. And people have been asking, why is this happening now? Why did me too movement happen now? And one article I read by a psychologist that made sense to me was that during the 2016 election, the Access Hollywood tape came out with Donald Trump saying that he had grabbed a woman by the private parts. And I know for myself and a lot of my friends what came up for us were things that we had repressed for decades. I actually was raped in 1978 by an ex-boyfriend who I hadn't seen in six months and broke into my house. And I completely repressed it. I had completely forgotten about it. And when this tape came out, I remembered it. So then when he got elected, despite that, and then there was the women's march the day after the inauguration, women started talking to each other. And one of the things that we know historically that happens in countries all over the world is that if people can't fight the person at the top, they'll fight their supporters. They'll fight their people who are like them and try to undermine that person or get their revenge in the essence against those people. So I don't know if that's why it's happening now, but it certainly was an interesting psychological theory. Yeah, yeah. There is, you're right. There's a sort of, in some sense, our president has made it okay to verbalize feelings opinions that for a long time, basically, it was not okay for leaders to do. And so whether that's more of it just now coming out. And times do change, values do change, our cultural norms change. I mean, this whole thing's made me look back on my behavior and there are instances, many years ago, I did things that today I wouldn't really think of doing. I would certainly think twice about it before doing. Just seemed perfectly innocent and fine at the time, but, you know, yeah. I was just thinking this morning, you know that famous picture of Times Square, the sailor kissing the nurse on V.E. Day? Right. That could never happen again. That's right, yeah, you can't just approach a stranger and do that one out. Right. Slap the lawsuit immediately. That's very peculiar or peculiar, yeah. So what can be done? Well, from a company perspective, they have to make sure that their policies are in order. A lot of companies' policies are just direct quotes from the law so they wanna make sure their policies set a higher standard than the law. They wanna have training and the Equal Employment Opportunity Commission now recommends that companies not only train not to do harassment, but also train on how to create a respectful workplace and how to empower bystanders to intervene. I've been teaching that for decades, but the EEOC finally caught up. Good, good. So from a company perspective, that's what we can do. Oh, in terms, I did wanna mention about Aloha because we live in Hawaii and so often we embrace when we meet each other and some men can take advantage of that. So for example, I recently met a man and I stuck out my hand to shake his hand and he pulled me in to hug me but I really didn't wanna hug him or you'll hug them in a nice Aloha hug and they'll kinda snuggle or they'll thrust their pelvis at you or they'll force you to kiss them on the lips. So none of that is Aloha and let's not do that anymore. And then I suggest that women and men when they meet each other for the first time indicate what they welcome. So if you hold open your arms, that means you welcome a hug and if you hold out your hand, that means you welcome a hand, Shagan. This trumps this. Yeah, and there are very, very, you have to be more attuned, I guess, these days than what you used to. It's quite a, so do you see the situation changing, getting better, getting worse? Well, you know, I was interested in the amount of sex offenders who have been registered keeps going up. Whether that has to do with the availability of pornography, whether people are being reported more often, but just in general, we know that sex offenses are going up. So I imagine that there's going to be some period of time where we're like this, that there's gonna be a lot coming up, that women are going to be bringing up things that happened in the past as well as things that happened yesterday and it's gonna take some time to work through it. Okay. Well, I told you before the show I was gonna ask an off the wall question here and so now is the time. Here we go. Right, here we go. So if you could have a superpower of either being able to fly or being invisible, which would you choose and why? I would choose invisibility. Really? Yes. And why? I don't like flying. Interesting, interesting. And I would love, I mean, there's so many situations where I would love to be in the room when something's happening and be able to observe it, without them knowing that I'm observing it. Excellent, well wonderful. Thank you, McCona. It was a pleasure having you here. I enjoyed our conversation, learned a lot as I had my previous conversations with you and I hope we'll get together again soon and I hope you will come back and see us here on Likeable Science next week. I'm your host Ethan Allen, signing off from Likeable Science for another week.